---

IN THE NORTH WEST HIGH COURT, MAFIKENG

                                                                    CASE NO:  CAF 13/2015

In the matter between:

RAPHEFO JEREMIA PULE                                                                                     Appellant

and

THE STATE                                                                                           Respondent

 

FULL BENCH APPEAL

 

DATE OF HEARING                                       :         12 FEBRUARY 2016

DATE OF JUDGMENT                                  :         26 FEBRUARY 2016

         

COUNSEL FOR THE APPELLANT       :       ADV. ZWIEGELAAR

COUNSEL FOR THE RESPONDENT   :       ADV. MONYAI

JUDGMENT

HENDRICKS J

[1] The Appellant who was accused 2 during the trial, together with his co-accused were indicted and stood trial before Gutta J at Mogwase on inter alia charges of murder, kidnapping, assault with intend to do grievous bodily harm, attempted murder, assault, etc. He was convicted on the count of murder and two counts of assault with intent to do grievous bodily harm. He was sentenced to sixteen (16) years imprisonment for the murder charge and six (6) months imprisonment for each of the two counts of assault with intent to do grievous bodily harm. The sentences were ordered to run concurrently

[2] Leave to appeal the conviction on the count of murder was granted by the court a quo, whilst leave to appeal the sentence on the murder count as well as the conviction and sentence on the two counts of assault with intent to do grievous bodily harm was refused. The Supreme Court of Appeal (SCA) was petitioned for the requisite leave to appeal. The SCA granted the following order:

“1.        Leave to Appeal against sentence on the murder count is granted to the Full Court of the High Court North West Division, Mahikeng.

2.         Leave to appeal is limited to sentence on the murder count only.

3.         Leave to appeal against conviction and sentence on the two counts of assault with intention to cause grievous bodily harm is refused as an appeal will have no reasonable prospect of success.”

[3] The facts can be succinctly summarized as follows. The Appellant is the owner of a butchery. On 15 April 2010 he observed that his butchery had been broken into. Several items were stolen. He reported the matter to the local police station. His complaint was however not seriously considered or even paid attention to by the police. Instead, he was told to go and look for the perpetrator(s) and to bring evidence.

[4] He, together with other community members then embarked on a mission to hunt for the perpetrators. Information received informed that Abel Mpodi (“deceased”), Thabo Kgatitswe (“Thabo”) and Johnny Mabalane (“Johhny”) were the perpetrators. These people were apprehended and assaulted on the Friday. A search was conducted at various different places and different townships for the stolen items. They were locked inside a room at the parental home of the Appellant and kept overnight. The following morning the Appellant left for an auction of cattle at Klerksdorp. He however got stuck at Boshoek and never reached his intended destination. When he returned he saw the deceased, Thabo and Johnny in the presence of community members leaving Tlhatlhaganyane in motor vehicles heading to Tlhabane. He joined them later on at Tlhabane. After a while, he told one of the persons namely Mabe that he was leaving and he retired to his mother-in-law’s place at Fox Lake to go and sleep. Before he could sleep, he received information that he should attend at the police station. He went there in the company of his wife. Subsequent thereto he, Mabe, and others were apprehended by the police.

[5] Central to this appeal is the question whether the State succeeded in proving the guilt of the Appellant beyond reasonable doubt based on the principle of common purpose and incidental thereto, whether the Appellant did not effectively dissociated himself from the conduct of the others.

[6] In evaluating the evidence tendered during the trial, Gutta J summarized it as follows:

“When one considers the evidence of the state witnesses, it is apparent that Thabo and Johnny corroborated each other in the following respects:

1.    A group of men, approximately 13 to 18, arrived at their homes in the evening on 16 April 2010 looking for stolen goods, carcasses and mag wheels.

2.    The men arrived in three vehicles.

3.    Accused 2 was in the group of men.

4.    Thabo was tied with a rope.

5.    After both Thabo and Johnny were apprehended, the men proceeded to Abel’s home.

6.    Abel was hit with fists and was shocked with a cattle prodder.

7.    Abel was tied with a rope in his hands and legs.

8.    Abel sustained the most assaults.

9.    At Tlhatlhaganyane, a rope was tied around Johnny and Abel’s necks, the rope was pulled causing their heads to collide.

10. They were put in a room together in Tlhatlhaganyane.

11. Abel complained about pains to his head and was given headache tablets.

12. The next day on 17 April 2010, they were taken to Tlhabane. The assaults continued the next day, that is 17 April 2010. The men did not find who they were looking for, and one of the men slashed the tyres of a vehicle that belonged to a person by the name of “Tworoad”.

13. At some point, Abel was taken out of the vehicle and put into another vehicle.

14. Later Johnny and Thabo were taken to the police station.

15. Neither Johnny nor Thabo saw accused 4.

The state witness, Agnes Motsamai, also corroborated Johnny and Thabo’s version as follows:

1.    She confirmed that on Friday night, accused 2 was in the company of a group of men who were searching her house and the neighbour’s shack looking for items.

2.    In the vehicle she saw Johnny and Abel.

3.    Abel was tied with a rope on his hands and feet.

4.    She saw three vehicles.

5.    She said Abel appeared to be assaulted, he had blood on his mouth and a wound on his back. This is consistent with Johnny’s description that Abel was bleeding from his nostrils.

6.    Johnny tried to alight from the vehicle and someone prevented him from doing so.

A common thread in the evidence of the three state witnesses is that Abel, Johnny and Thabo were all assaulted and Abel was more seriously assaulted than the others.

Thabo says that Abel was assaulted the worst because he was the main suspect. He was injured on the head and his head was swollen.

Johnny said that the whole group hit Abel with fists, open hands and shocked him with a cattle prodder, and Abel sustained more serious injuries. He was bleeding from his nostrils and his whole face was swollen.

What is also common amongst the three state witnesses is accused 2’s presence on 16 April 2010 and his involvement, Ms Motsamai testified that she saw accused 2 on 16 April 2010 with a group of men.

Thabo described accused 2 as the leader and that he was in control of the group and gave directions and orders to the others in the group.

Thabo said accused 2 assaulted him the hardest.

He also said accused 2 pulled the rope that was put around Abel and Johnny.

He further identified accused 2 on the 17 April 2010 as a person who slashed the tyres.

Johnny said on 16 April 2010, it is accused 2 who arrived with a group of men and told him that there was a housebreaking in the shop and items were stolen.

Johnny said accused 2 participated in the assaults.

He also said that on Friday evening, the van was driven by accused 2.

In cross-examination, he also said that it is accused 2 who was the first person who grabbed Abel and slapped him with an open hand and shocked him with a cattle prodder.”

I find the summary and evaluation quite correct.

[7] In applying the facts of this case to the principles as enunciated in S v Mgedezi 1989 (1) SA 687 (A), which withstand constitutional muster  in S v Thebus [2003] ZACC 12; 2003 (2) SACR 319 (CC), Gutta J said:-

“When applying the rule to the facts of this case, the following emerges:

1.    Accused 2 was present on the scene when Abel, Johnny and Thabo were assaulted.

2.    Accused 2 was aware of the assaults, as disclosed by the state witnesses.

3.    Accused 2 consciously shared a common purpose with the perpetrators.

4.    The common purpose was assaulted Abel, Johnny and Thabo until they confesses to committing the crimes and disclosed the whereabouts of the items that were stolen.

5.    Accused 2 manifested his common purpose with the perpetrators in that he himself performed an act of association with the conduct of the others.

He drove his vehicle with a group of people when they took Abel, Thabo and Johnny from their homes.

According to Thabo, accused 2 assaulted him.

Accused 2 was perceived as the leader and gave directions to the participants.

According to Johnny, accused 2 participated in the assaults. The whole group, including accused 2, hit Abel with fists, open hands and he was shocked with a cattle prodder. He said when accused 2 used the cattle prodder on Abel that Abel screamed in pain. He said Abel was hit indiscriminately.

Accused 2’s father’s home was used to keep Abel, Johnny and Thabo hostage until accused 2 returned from Klerksdorp the following day. Abel, Johnny and Thabo were also assaulted in the house.

Accused 2 actively associated himself with the assaults committed on Abel, Thabo and Johnny.

I will refer to the fifth element as set out by Mgedezi supra later.

Counsel for accused 2, Mr Moretlwe, submitted that Abel could have sustained the injuries that caused his death in the early hours, after accused 2 left the group or on the 17^th when accused 2 was absent.

He said Abel was in good health on the 17^th when accused 2 left the group.

He relied on accused 4’s evidence that at 19h00 on the 17^th when accuse 4 arrived, Abel was still ‘fine’.

As stated supra, the causation element is absent with common purpose, hence this is not relevant.

Mr Moretlwe also submitted that when accused 2 realised that Mabe was becoming violent, he disassociated himself from the violent act and went to his mother-in-law’s.

However, from the evidence, the violent act he referred to was the slashing of the tyres and not the assaults committed on Abel.

Further, on accused 2’s version, he followed Mabe and the others to Tlhabane where the group was trying to find the man who transported the items. Thus he was still part of the group

Also, as pointed out supra, on accused 2’s version that was put to Thabo, Mabe made him aware that the police did not take Abel into custody because of Abel’s health condition, hence accused 2 would have been aware that Abel was not in police custody.”

I am in full agreement with this evaluation of the evidence and I am of the view that the finding of the court a quo in this regard cannot be faulted.

[8] The question of dissociation was also comprehensively dealt with by Gutta J and in my view correctly applied to the facts of this case. The court a quo stated:

“In the text Criminal Law C R Snyman Fifth Edition page 270 it reads as follows:

“Just as association with common purpose leads to liability, disassociation or withdrawal from common purpose may in certain circumstances, negative liability. It is however not any kind of withdrawal which has this effect.”

He submitted the following propositions as a fair reflection of the law, namely:

1.    The accused must have a clear and unambiguous intention to withdraw from such purposes.

There is no evidence presented that accused 2 intended withdrawing. The evidence presented is that he was tired and wanted to sleep and had his family in the vehicle.

2.    The accused must perform some positive act of withdrawal.

This element is absent in casu.

3.    The withdrawal must be voluntary.

This too is absent.

4.    The withdrawal will amount to a defence only if it takes place before the cause of events have reached the “commencement of the execution”.

From the evidence, the assaults commenced on the 16^th and continued on the 17^th, hence the accused could not rely on withdrawal as a defence.

5.    The type of act for effective withdrawal depends upon the circumstances.

From the circumstances in casu, there is no evidence of an effective withdrawal.

6.    The role played by an accused in devising the plan to commit the crime has a strong influence on the type of conduct which the law requires him to perform in order for him to succeed with a defence of withdrawal.”

[9] Gutta J in evaluating the evidence stated:

“As already stated supra, the evidence presented is that accused 2 was portrayed as the leader of the group

This is strengthened by the fact that his shop was broken into, he initiated the search, his vehicle was used, his father’s house was used to keep Abel, Thabo and Johnny and on his own version he was following the police officer’s instructions to find evidence and the perpetrators.

He was involved in the assaults on 16 April 2010 and on 17 April 2010 he followed the men to Tlhabane.

He was in contact with Mabe even after the men were taken to the police station and even the day after the commission of the offence.

Counsel for accused 2 stressed that there was no evidence that accused 2 actively associated himself with the murder of Abel as well as the assaults on Johnny and Thabo.

I have already addressed the issue of active association in respect of the murder of Abel and the assaults on Thabo and Johnny.

However, when it comes to the two counts of assault with intent to do grievous bodily harm, further support of common purpose can be found in the following:

The evidence is that after the break-in at accused 2’s butchery, accused 2 went to the community to report the theft and conducted his own investigations.

Members of the community, some of whom were also victims of theft, joined him in the search for the perpetrators and the items.

The evidence presented is that accused 2 was in possession of a cattle prodder. This was described as a metal object which is used to shock a person and which causes pain.

In this judgment the word ‘choking’ was often used, which I understand to be the shocking of a person.

Apart from the cattle prodder, the men were armed with ropes which were used to tie Thabo, Johnny and Abel.

Hence, when they left accused 2’s butchery in their respective vehicles there was indeed a common goal to find the perpetrators and to use force so that they would confess and produce the items that were stolen.

Hence, in the circumstances, there was indeed a prior agreement which can be inferred from the conduct and the circumstances of this case.

As stated supra, there is no evidence presented to suggest that accused 2 disassociated or withdrew from the common purpose.”

[10] In S v Nduli and others 1 993 (2) SACR 501 (A) at 504d the following was said in regard to the defence of dissociation:

'Dissociation consists of some or other form of conduct by a collaborator to an offence with the intention of discontinuing his collaboration. It is a good defence to a charge of complicity in the eventual commission of the offence by his erstwhile associate or associates (see S v Nomakhlala and Another  1990 (1) SACR 300 (A) at 303g – 304d; S v Nzo and Another 1990 (3) SA 1 (A) at 11H – I; S v Singo [1992] ZASCA 219; 1993 (2) SA 765 (A) at 771E – 773E). The more advanced an accused person's participation in the commission of the crime, the more pertinent and pronounced his conduct will have to be to convince a court, after the event, that he genuinely meant to dissociate himself from it at the time.  It remains, I tend to think, a matter of fact and degree as to the type of conduct required to demonstrate such an intention. In S v Beahan  1992 (1) SACR 307 (ZS) at 324b – c, the position was stated, after a review of some English authorities, in rather more rigid terms:

“I respectfully associate myself with what I perceive to be a shared approach, namely, that it is the actual role of the conspirator which should determine the kind of withdrawal necessary to effectively terminate his liability for the commission of the substantive crime. I would venture to state the rule this way: Where a person has merely conspired with others to commit a crime but has not commenced an overt act towards the successful completion of that crime, a withdrawal is effective upon timely and unequivocal notification to the co-conspirators of the decision to abandon the common unlawful purpose. Where, however, there has been participation in a more substantial manner something further than communication to the co-conspirators of the intention to dissociate is necessary. A reasonable effort to nullify or frustrate the effect of his contribution is required.”

‘These remarks, to which I shall refer as the dictum in Beahan's case",  are applicable, as was pointed out in Singo's case supra at 772B – C, to persons who, by prior arrangement, became co-conspirators and not to those who, by active association falling short of prior agreement, became associates to a common purpose to commit a crime. The correctness of the dictum in Beahan's case was accordingly not considered by this Court in Singo's case. The instant case, unlike  Singo's case, is indeed one of co-conspirators. The dictum in Beahan's case would accordingly be applicable. But whether it is essential to apply it to the facts of this case, or to express a view as to its correctness, is another matter to which I shall in due course revert.’

[11] The court in the Nduli matter went on to consider the particular facts upon which the defence of dissociation was founded and came to the conclusion that it had not been established as a reasonable possibility that the appellant had dissociated himself from the planned enterprise. That conclusion was arrived at without regard to the dictum in Beahan's case and the court went on to state (at 506j – 507b) that:

'If the letter of that dictum were to be applied to the facts of this case, it would of course be an a fortiori situation: even in terms of his own statement the first appellant failed to notify his co-conspirators, when he had ample opportunity of doing so, of his fixed intention to abandon their unlawful common purpose; and to the extent that the matter had already progressed well beyond the mere planning stage, he failed to nullify or frustrate its implementation. But because I come to the conclusion, without regard to the dictum in Beahan's case, that dissociation has not been established, it is not necessary to venture a view as to whether that dictum, expressed as a rule, is a rule of law in this country or at best a rule of thumb. That issue can be left for consideration by some other court at some other time.' 

[12] In S v Lungile and Another  1999 (2) SACR 597 (SCA) at 603 this issue was again considered. The court stated in paragraph 20 that:

'The present case differs from S v Singo (supra) where there was no prior agreement and the common purpose was manifested simply by conduct (see 233a – c). It may well be the correct position, as was stated in S v Beahan  1992 (1) SACR 307 (ZS) by Gubbay CJ, that where there had been a prior agreement to commit a crime, and participation to some substantial degree in its execution, that something more than a mere withdrawal is required to establish a legally effective dissociation, eg a notification to the co-conspirators and a nullification or frustration of the further implementation of the enterprise. Whether the dictum in Beahan's case applies in our law, and whether it is a rule of law or a rule of thumb, have been left open by this Court in S v Nduli and Others  1993 (2) SACR 501 (A) at 504d – j and 506j – 507b. The matter need not be decided in the case now before us, because it is clear that, on whatever view one takes of the matter, there was no effective dissociation. The first appellant's mere departure from the scene is a neutral factor. It is more likely that he fled because he was afraid of being arrested, or of being injured, or to make good his escape with the stolen money and goods. It has, therefore, not been established as a reasonable possibility that the first appellant dissociated himself from the planned enterprise and its sequelae (cf S v Nduli and Others (supra at 506j)).'

[13] In S v Wana 2015 (1) SACR 374 ECP Goosen J stated the following at page 378 b-c:-

“In my view it is necessary to consider the effect of the Beahan dictum in the circumstances of this case. That dictum, it seems to me, proceeds from the logical premise that the greater the involvement and the more advanced the execution of the criminal enterprise, the more clearly an accused person who relies on dissociation must establish a basis for a finding of dissociation. This is not to say that such an accused attracts an onus. Rather it is to suggest that the accused should establish the performance of some positive act of withdrawal or dissociation. It is also necessary to establish that the accused had a clear and unambiguous intention to withdraw from the criminal enterprise (see Singo (supra) at 772H – I).”

[14] In the unreported judgment of Nube v The State (091/15) [2015] ZASCA 136 (30 September 2015), the Supreme Court of Appeal held:-

“[19]    I now turn to deal with whether the appellant’s conduct can sustain his defence that he had effectively withdrawn or dissociated himself from the conspiracy and continuing common purpose with the syndicate to commit the heist on 7 November 2011.

[20]      It is trite that this question is a factual one to be answered with reference to the evidence led and the role played by the appellant. This requires the court to evaluate the entire mosaic of the evidence presented, to determine if the proven evidence is such that it can sustain a conclusion that the appellant did in fact withdraw from the planned heist. See S v Thebus & another [2003] ZACC 12; 2003 (6) SA 505 (CC) para 44.

[21]      This Court enunciated the test for dissociation in S v Nduli & others 1993 (2) SACR 501 (A) at p504d-e as follows:

‘Dissociation consists of some or other form of conduct by a collaborator to an offence with the intention of discontinuing his collaboration. It is a good defence to a charge of complicity in the eventual commission of the offence by his erstwhile associate or associates (see S v Nomakhlala & another 1990 (1) SACR (A) 300 (A) at 303g-304d; S v Nzo & another 1990 (3) SA 1 (A) at 11H-I; S v Singo [1992] ZASCA 219; 1993 (2) SA 765 (A) at 771E-773E). The more advanced an accused person’s participation in the commission of the crime, the more pertinent and pronounced his conduct will have to be to convince a court, after the event, that he genuinely meant to dissociate himself from it at the time. It remains, I tend to think, a matter of fact and degree as to the type of conduct required to demonstrate such an intention’.

[22]      This Court expounded the salutary approach further in S v Musingadi & others 2005 (1) SACR 395 (SCA) at para 35 as follows:

‘What may be gathered from our case law, however, is that not every act of apparent disengagement will constitute an effective disassociation. Compare Snyman Strafreg 4th ed at 267-9. It appears that much will depend on the circumstances: On the manner and degree of an accused’s participation; on how far the commission of the crime has proceeded; on the manner and timing of disengagement; and, in some instances, on what steps the accused took or could have taken to prevent the commission or completion of the crime. The list of circumstances is not exhaustive. To reduce this composite of variables to a workable rule of law may be artificial, even unwise.’

The court went further and stated at para 39 that:

‘The greater the accused’s participation, and the further the commission of the crime has progressed, then much more will be required of an accused to constitute an effective disassociation. He may even be required to take steps to prevent the commission of the crime or its completion. It is in this sense a matter of degree and in a borderline case calls for a sensible and just value judgment.”’

[15] To reiterate, in my view the court a quo correctly evaluated the evidence and concluded that the Appellant’s conduct did not amount to effective dissociation from the conduct of the others. There are no grounds upon which this Court can interfere with the conviction.

[16] As far as sentence is concerned, it was submitted by counsel acting on behalf of the Appellant, that the sentence of sixteen (16) years is shockingly inappropriate. This is the only ground raised against the sentence imposed. I do not agree with this proposition.

[17] The court a quo correctly applied the principles in imposing an appropriate sentence as it was by law enjoined to do. In the well-reasoned judgment on sentence all the facts, factors and circumstances were taken into consideration when sentence was imposed. The finding of the court a quo in this regard can equally not be faulted. No misdirection can be found. Similarly, I can find no reason to interfere with the sentence imposed.

Order:

[18] Resultant, the following order is made:-

The appeal against conviction and sentence (on the count of murder) is dismissed.

R D HENDRICKS

JUDGE OF THE HIGH COURT

 

I agree

 

A M KGOELE

JUDGE OF THE HIGH COURT

 

I agree

T DJAJE

ACTING JUDGE OF THE HIGH COURT

---